Summary
rejecting claim by habeas petitioner that return to state court would be futile "because it is inconsistent with the doctrine of comity which assumes State courts will perform their assigned review function and because it is inconsistent with the explicit exhaustion requirement contained in 28 U.S.C. § 2254(b)"
Summary of this case from Shomo v. MaherOpinion
01 Civ. 3441 (LMM) (GWG)
July 2, 2002
OPINION AND ORDER
David Priester, also known as James Thomas, petitions pro se for a writ of habeas corpus. Priester is currently serving a term of imprisonment for Robbery in the Second Degree under New York Penal Law § 160.10. The respondent has moved for an order dismissing the petition on the ground that it contains solely unexhausted claims. For the reasons discussed below, the petition will be stayed to permit Priester to exhaust his state remedies with respect to one of his claims.
I. STATEMENT OF FACTS
A. Priester's Conviction and Notice of Appeal
On November 5, 1999, Priester was convicted of Robbery in the Second Degree in New York Supreme Court. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody, filed March 19, 2001 ("Petition") at 2. He was sentenced to 7-1/2 to 15 years imprisonment. Id. at 2. On May 16, 2000, Priester filed a Notice of Appeal to the Appellate Division of the Supreme Court, First Department. See Affirmation in Support of Motion to Dismiss, dated January 11, 2002, ¶ 4 ("Respondent Aff"); Decision and Order, Ind. No. 10019/94, dated January 5, 2001 at 1 (reproduced as Exhibit B to Respondent Aff.) (hereinafter "Section 440.10 Decision"). He was granted leave to prosecute his appeal as a poor person and was assigned appellate counsel. Id. On July 13, 2000, Priester entered into a stipulation withdrawing his direct appeal, then still pending, with prejudice. See Respondent Aff., Exhibit A; see also Petition at 4; Letter from David Priester to the Court, filed November 6, 2001 ("November 6 Letter"), at eighth unnumbered page. The Appellate Division issued an order designating the appeal as "withdrawn" on July 27, 2000. See People v. Thomas, 274 A.D.2d 979 (1st Dept. 2000).
B. Priester's Section 440.10 Motion
Shortly before withdrawing his direct appeal, Priester moved in June 2000 before the New York State Supreme Court to vacate his conviction pursuant to Criminal Procedure Law ("CPL") § 440.10 (the "Section 440.10 Motion"). See Petition at 3; Motion Pursuant to C.P.L. § 440.10, served June 23, 2000, annexed to the Petition. In this motion Priester argued that 1) his identification by the arresting officer should not have been admitted at trial; and 2) he received ineffective assistance from trial counsel with respect to the admission of identification evidence. The State Supreme Court denied this motion on January 5, 2001. Petition at 4; Section 440.10 Decision at 3.
The State Supreme Court denied Priester's motion on "two independent procedural grounds." Section 440.10 Decision at 1. First, the court held that any challenge to the credibility of the arresting officer's identification of Priester had been previously raised in a post-trial motion (brought prior to sentence) and therefore could not be raised again in the 440.10 motion. Id. Second, the court held that all of Priester's arguments concerning the admissibility of the identification evidence and `many of' his arguments concerning the alleged ineffectiveness of his trial counsel were record based and thus should have been raised on direct appeal. Id. The court rejected Priester's argument that he had to use a section 440.10 motion to raise these claims because he had misgivings about his assigned counsel on direct appeal. Instead the court ruled that any such misgivings had not compelled Priester "to involuntarily relinquish his right to counsel on appeal" and further noted that Priester had the "unqualified right . . . to appeal pro se." Id. at 2. Accordingly, the court found that Priester had "voluntarily withdrawn his appeal to the Appellate Division" and could not use "CPL Article 440 to devise an appeal to the trial court." Id. The court ruled in the alternative that Priester's claims concerning the admissibility of identification evidence and his defense counsel's alleged ineffectiveness must be denied on the merits. Id. at 2-3.
Priester did not appeal the denial of his 440.10 motion. See Respondent Aff. ¶ 5; November 6 Letter at unnumbered third and fifth pages.
C. The Instant Petition
On March 19, 2001, Priester filed the present petition in the Western District of New York. On March 26, 2001, that Court transferred the petition to the Southern District of New York. See Decision and Order, filed March 26, 2001. The petition alleges three grounds for relief as follows:
Ground one: Denial of Rosario Material at trial. The Petitioner was not given the memo book of the arresting officer at trial. []
Ground two: Identification is inadmissible. The arresting officer testified that he identified the Defendant-Petitioner under unconvincing circumstances, and coerced the complainant to make an identification.
Ground three: Ineffective Assistance of trial counsel. Trial counsel failed to request a dismissal of the charge and indictment before the trial judge and before the jury verdict on the foundation that the circumstances surrounding the identification, and a request by the Petitioner at the Wade hearing which later was corroborated by the complainant concerning a hat being placed on the Petitioner.
In People v. Rosario, 9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961), the New York Court of Appeals held that a criminal defendant is entitled to review, upon request, any statement given before trial by a witness for the prosecution relating to the subject matter of the witness' testimony.
Petition at 5-6 (errors in original).
On May 8, 2001, the Court issued an order directing the New York County District Attorney to file an answer or motion within 30 days. On August 3, 2001, New York County Assistant District Attorney Morrie I. Kleinbart submitted a letter (docketed November 15, 2001) setting forth reasons for the delay in the response and arguing that the petition should be dismissed because Priester had failed to exhaust his state remedies. In an undated letter (docketed November 6, 2001), Priester responded to the August 3 letter. He did not dispute the facts in the letter but rather argued that his section 440.10 motion "ha[d] already been resolved . . . [a]nd as such . . . there is no reason to return to the state court. . . ." November 6 Letter (unnumbered fourth page). He further asserted that he could no longer go back to the state court and that for this reason his claims were exhausted. Id. (unnumbered fifth page). Priester also argued at length that he was not aware that a pro se defendant had the right to appeal and so the withdrawal of his direct appeal was involuntary. Id. (unnumbered eighth through thirteenth pages).
On December 7, 2001, the Court issued an order directing the respondent to serve and file a formal response to the petition which "may, in the Respondent's discretion, consist of a motion to dismiss." The respondent was also directed to address any issues raised in Priester's November 6 Letter. The respondent moved to dismiss again arguing that Priester had failed to exhaust any of the claims contained in his Petition. Priester submitted a Response to Respondent's Formal Motion and Affirmation, dated January 30, 2002 (hereinafter "Priester Response"). In his response, Priester argued that 1) he has no further recourse to the state courts for his claims contained in the Section 440.10 Motion (Grounds Two and Three of the Petition) because these arguments are record based and are certain to be denied by the state appellate courts as they were by the New York Supreme Court, Priester Response at 1-8; 2) he can demonstrate cause for his failure to complete the direct appeal process, because his withdrawal of the appeal was involuntary, id. at 13; see also Conclusion Section, unnumbered page one and page numbered "Cont. 1;" and 3) he had no recourse to the state courts concerning his argument that the withdrawal of his direct appeal was involuntary because he could not be certain that he would receive a favorable ruling from the State appellate courts on this issue Id at 4; see also id. at 9-13.
II. DISCUSSION
A. The Exhaustion Requirement
Before a federal court may determine the merits of a habeas corpus claim, petitioners must first exhaust their available state court remedies. See 28 U.S.C. § 2254(b)(1)(A) ("[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ."); see e.g., Dave v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In order for a claim to be exhausted, a petitioner is required to have presented the same claim presented in the habeas petition to each level of the state courts to which the right of appeal lies. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Dave, 696 F.2d at 191.
B. Analysis of Whether Priester's Claims Have Been Exhausted
In his Motion to Dismiss, the respondent argues that the petition should be dismissed because it contains only unexhausted claims. See Respondent Mem. at 1-4. The basis for this argument is simply that Priester withdrew his direct appeal and never sought leave to appeal the denial of his Section 440.10 Motion to the Appellate Division. Id. at 2. Thus, in the respondent's view, none of the claims is exhausted and the entire petition must be dismissed.
This argument, however, does not take into account that when a petitioner fails to present a claim to each level of the state courts but is thereupon foreclosed from doing so by a state procedural rule, the petitioner's claim is "deemed exhausted" for purposes of federal habeas review. Reves v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); accord Aparacio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); Grey v Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Of course, "the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim," Gray v. Netherland, 518 U.S. 152, 162 (1996), and the petitioner may only escape this result by showing cause and prejudice for the default or a fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262 (1989). Any such procedurally defaulted claim is considered to be "exhausted" and the habeas court will not direct the petitioner to return to State court in an attempt to exhaust that claim.
As is discussed further below, the fact that an otherwise unexhausted claim may be "deemed" to be exhausted for federal habeas review purposes has a critical bearing on the disposition of the instant petition. Before discussing the impact of this doctrine, however, the Court will first examine the claims asserted by Priester to determine whether they have been exhausted.
1. Grounds One and Two
As noted, a claim is "deemed exhausted" when there is a state procedural rule that bars consideration of the claim by the New York State courts. Reves v. Keane, 118 at 139 (2d Cir. 1997); Aparacio v. Artuz, 269 F.3d at 90; Bossett v. Walker, 41 F.3d at 828-29; Grey v Hoke, 933 F.2d at 120-21. One procedural rule applicable to Priester's claims is that New York State law permits only one direct appeal of a conviction to the Appellate Division. See Aparicio v. Artuz, 269 F.3d at 91 (criminal defendant is "entitled to one (and only one) appeal to the Appellate Division"). While New York State law provides for collateral review of a conviction under CPL § 440.10, such review is not available if the claim could have been raised (or was actually decided) on direct review. See CPL § § 440.10(2)(a), (c). A New York State court "must deny a motion to vacate" a conviction on a particular issue when "sufficient facts appear on the record of the proceedings underlying the judgment" to have permitted review of the issue on appeal and there was an "unjustifiable failure" to raise the ground on appeal. Id. Thus, if any of Priester's claims could have been raised on direct review but were not, Priester is foreclosed from raising these claims by virtue of this New York State procedural rule.
With respect to the Rosario claim (Ground One), Priester himself states that "Rosario was not presented in the [§ 440.10 motion]. The facts presented herin [sic] are a part of the original record, and as such, to present the issue of Rosario would have been met with the same response that it could have been raised on appeal." Petition at 6 (emphasis added). With respect to the identification claim (Ground Two), Priester also concedes that this issue is record-based and could have been raised on appeal. Priester Response at 3. Priester does not advert to any extra-record evidence in support of these claims. Thus, CPL § 440.20(2)(c) requires both Ground One and Ground Two to have been raised on direct review.
These claims were not raised on direct review because Priester withdrew his appeal in its entirety. Priester has given no justification for his failure to raise these claims except to insist that he did not know that he could have pursued a direct appeal pro se. The State Supreme Court has held that Priester's actions did not justify his failure to raise these issues within the meaning of CPL § 440.10(2)(c). See Section 440.10 Decision at 2 ("having voluntarily withdrawn his appeal from the Appellate Division, defendant may not subvert CPL 440.10(2)(C) and employ CPL Article 440 to devise an appeal to the trial court"). Accordingly, the State court found these claims to be procedurally barred.
A finding of procedural default by a State court bars "federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. at 262 (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 724 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). The Second Circuit has specifically held that a court's reliance on CPL § 440.10(2)(c) constitutes an adequate and independent state ground that precludes federal habeas review. See, e.g., Reves v. Keane, 118 F.3d at 139; Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995), cert. denied, 520 U.S. 1106 (1997). It is of no moment that the state court denied Priester's claim in the alternative on the merits. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim"). Because the New York State courts will not now hear either Ground One or Two of the petition, it would be fruitless to require Priester to pursue these claims in state court and thus this Court will "deem the claims exhausted." Bossett, 41 F.3d at 829. "However, the same procedural defaults prevent [the Court] from addressing the merits of these claims." Id.
As noted, the only way for Priester to escape this result is if he can show "cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)." Aparacio v. Artuz 269 F.3d at 89 (citing Coleman, 501 U.S. at 748-50). The only showing Priester has made on this front is to assert that he should not be penalized for withdrawing his own appeal. Priester argues that he did not know that he could file a pro se appeal and would have done so had he known it was permitted. See Priester Response at Conclusion Section, first unnumbered page ("had the Petitioner be [sic] apprised that [h]e was capable of self-representation in the state . . . a waiver would not have been a choice . . . such a move would not have been made"); November 6 Letter at eleventh unnumbered page ("Had petitioner understood that counsel is not a contingency to an appeal . . . Petitioner surely [sic] had pursued his appeal"). Liberally construing Priester's Response, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), he also appears to be arguing that he had no state remedy to pursue in regard to the issue of the alleged "involuntariness" of the withdrawal of his appeal because he believed that the Appellate Division would not entertain his claim or offer him a favorable result. Priester's Response at 11. ("And to use the Leave to Appeal to appeal an abandon right to an inappropriate remedy and would have been barred as a matter of law. So again this route was ineffective to gain access to the Appellate court on the issue of Involuntariness of the waiver . . . as such was not a Justifiable failure to Appeal.") (errors in original).
The mere failure of a petitioner to be aware of a particular area of the law, however, does not constitute "cause." Rather, "cause" means "something external to the petitioner, something that cannot be fairly attributed to him." Coleman, 501 U.S. at 753. The Second Circuit has held that the voluntary withdrawal of an appeal does not constitute the requisite "cause" necessary to excuse a petitioner's failure to exhaust his state remedies. See Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994) ("decision to withdraw [petitioner's direct] appeal simply does not constitute cause for failure to bring the claim, nor can he demonstrate prejudice from the failure to consider it. . . . [The] voluntary withdrawal of [a] state appeal cannot satisfy the federal habeas exhaustion requirement."), cert. denied, 515 U.S. 1118 (1995). Here, Priester has not shown any external or other cause for his failure to conclude the appeals process other than his own purported misapprehension of his right to appeal pro se. He does not claim that he was misled by any State official or coerced into withdrawing his appeal. Notably, Priester has appended evidence to the present petition demonstrating his own experience in litigating other criminal convictions. He also states that he has previously filed pro se briefs in two separate federal habeas proceedings, see Petition, Statement of Facts at 4, 5 (describing filing previous Habeas Corpus petitions in both New York and New Jersey), suggesting that he has sufficient intelligence to have entered into the voluntary withdrawal of his own appeal. See Furman v. Dalsheim, 487 F. Supp. 1213, 1218 (S.D.N.Y. 1980) (habeas court rejected claim that withdrawal of appeal was not "knowing and intelligent" where it was "evident from the pro se papers filed and in the state proceedings that the petitioner [was] neither `retarded' nor `substantially below average intelligence'" and was aware of grounds for appeal since he had collaterally attacked his conviction three times). Priester himself states that the withdrawal of his direct appeal was the result of an "ill-informed choice" and thus does not implicate any external cause for his decision. Priester Response, Conclusion Section, first unnumbered page. For these reasons, Priester's withdrawal of his own appeal does not constitute "cause" for his procedural default.
As Priester made no showing of cause or "actual innocence," Grounds One and Two of the Petition must be deemed exhausted, procedurally defaulted and thus not subject to federal habeas review.
2. Ground Three
The claim raised in Ground Three of the petition, however, stands on a different footing from the other two claims. Ground Three alleges various ways in which Priester's trial counsel was ineffective — all relating to the treatment of the identification evidence that was ultimately admitted at trial. Priester argues that trial counsel (1) failed to request an adjournment of the identification hearing until the complainant was available to testify; (2) failed to adequately address the inadmissibility of the identification evidence; (3) failed to obtain expert testimony in regard to a police witness' memory; (4) failed to request an eyewitness charge; and (5) failed to move for a dismissal on the grounds of inadmissible identification. See Section 440.10 Motion at 10-18. The Supreme Court's ruling on the section 440.10 motion held that not all (but merely "many") of these arguments appeared on the face of the record. Section 440.10 Decision at 2.
Based on this determination, Priester properly brought at least some aspects of his ineffective assistance claim in a Section 440.10 Motion. He has not exhausted this claim in the state courts, however, by seeking leave to appeal the denial of that motion to the Appellate Division, as permitted by CPL § 460.10(4)(a). Thus, Priester has not presented this claim to each level of the State court system as required by 28 U.S.C. § 2254(b)(1)(A). See, e.g., O'Sullivan, 526 U.S. at 845; Dave, 696 F.2d at 191.
The problem Priester now faces is that the 30-day deadline for appealing this ruling has expired. See CPL § 460.10(4)(a). The respondent has apparently assumed that this means that Priester's ineffective assistance claim must be dismissed. Indeed, this would be the result for many procedural defaults for which it would be fruitless to require the petitioner to pursue the claim in State court. See, e.g., Reves v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828-29; Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).
With respect to the failure to seek leave to appeal the denial of a § 440.10 motion, however, the Second Circuit has squarely held in Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990), that a federal court may not assume that such a claim will be procedurally defaulted in the state courts. In Pesina, the petitioner had presented a claim on his direct appeal that had been exhausted. Subsequently, he brought a § 440.10 motion claiming that his sentence was excessive and that he was denied effective assistance of counsel. That motion was denied but the petitioner did not seek leave to appeal. Recognizing that the petition had both exhausted and unexhausted claims, the district court dismissed the petition in its entirety. On appeal, Pesina argued that because the statutory time limit for seeking leave to appeal the denial of his § 440.10 motion had passed, he had in fact exhausted the claims in that motion. In rejecting this argument, the Pesina court stated that:
While that statutory [limitations period] may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 action. Until Pesina presents his claim to the highest court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures.913 F.2d at 54 (citation omitted). Accordingly, the Second Circuit affirmed the dismissal of the habeas corpus petition.
The rule in Pesina has properly been called into question by several district courts based on cases such as Bossett and Reves, which make clear that it is pointless to require a habeas petitioner to return to state court to pursue a claim that is obviously procedurally barred See e.g., Rashid v. Kuhlman, 2000 WL 1855114, at *8 (S.D.N.Y. Dec. 19, 2000) (claims raised in unappealed § 440.10 motion deemed exhausted but procedurally barred because petitioner "no longer ha[d] any recourse to state review"); accord Thomas v. Greiner, 111 F. Supp.2d 271, 276-78 (S.D.N.Y. 2000); Devito v. Racette, 1992 WL 198150, at *2-5 (E.D.N.Y. Aug 3. 1992).
This Court, however, cannot overrule the holding of Pesina. In an analogous context, the Supreme Court has held that "`[i]f a precedent of [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.'" Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez v. Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); accord Butts v. City of New York Dept. of Housing Pres. and Dev., 990 F.2d 1397, 1409 (2d Cir. 1993). Based on this principle of stare decisis, this Court is constrained to follow the holding of Pesina. See Bloomer v. Costello, 2001 WL 62864, at *4-5 (S.D.N.Y. Jan. 24, 2001) (recognizing that the rule in Pesina has been undermined by later authority but holding that a district court is required to follow it). Thus, because Ground Three of the Petition was properly raised at least in part in Priester's § 440.10 motion — as recognized by the State Supreme Court decision itself — that motion must be treated as unexhausted by this Court. Pesina, 913 F.2d at 54.
Priester argues at length that his § 440.10 claims are reviewable by this Court because "the failure of Petitioner to appeal the 440.10 motion and decision can not be a failure to appeal to an available remedy and thereby exhaust a state remedy." Priester Response at 3. Priester is apparently arguing that the trial court rejected his § 440.10 motion because the claims brought therein could have been brought on direct appeal and thus any appeal of the section 440.10 motion would have been similarly denied and effectively futile. See Priester Response at 4 ("[E]qually their [sic] is a chance this appeal of [the 440.10 motion] would have been denied as being a substitute for an Appeal of Right.") Instead of seeking to appeal the denial of his § 440.10 motion to the Appellate Division, however, Priester proposes bypassing the state court forum merely because he anticipates an adverse ruling from the state courts. This argument is rejected because it is inconsistent with the doctrine of comity which assumes State courts will perform their assigned review function and because it is inconsistent with the explicit exhaustion requirement contained in 28 U.S.C. § 2254(b)(1)(A). Accordingly, Ground Three will not be deemed exhausted.
C. Treatment of "Mixed Petitions"
Where as here a petition contains both exhausted and unexhausted claims (commonly referred to as a "mixed" petition), and no ruling is made on the merits, this Court has discretion either (1) to dismiss the petition without prejudice to renewal after exhaustion of state court remedies or (2) to stay the petition with a requirement that the petitioner promptly pursue state court remedies with respect to any unexhausted claims and promptly return to federal court. Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001). Zarvela set forth this second option because dismissal of the entire petition without prejudice could result in any newly filed petition being dismissed on statute of limitations grounds under 28 U.S.C. § 2244(d)(2). Such a result would occur in Priester's case because the time his petition has been pending in federal court will not toll the statute of limitations See Duncan v. Walker, 533 U.S. 167, 175 (2001). Zarvela makes clear that if "an outright dismissal could jeopardize the timeliness of a collateral attack," the Court must stay the petition. Zarvela, 254 F.3d at 380 (citation and internal quotation marks omitted).
The reasoning of Zarvela applies equally to mixed petitions that consist of unexhausted claims alongside those that have been "deemed" exhausted based on a procedural default that prevents a return to State Court. See Rowe v. People of the State of New York, 2002 WL 100633, at *5 n. 3 (S.D.N.Y. Jan. 25, 2002). If this Court were to dismiss Priester's petition outright, any new petition filed by Priester (following his exhaustion of the claim in Ground Three) would be untimely. Accordingly, the Court will stay this petition to allow Priester an opportunity to attempt to appeal the disposition of his Section 440.10 Motion. Obviously, this ruling does not foreclose any arguments the respondent may make in the future in opposition to Ground Three.
III. CONCLUSION
The petition will be stayed to permit Priester to seek leave to appeal the denial of his § 440.10 motion. This stay is issued on the following two conditions:
1. Within 30 days of entry of the Order ruling on this matter, Priester must file an application to the Appellate Division under CPL §§ 450.15(1), 460.10(4)(a) and 460.15 seeking leave to appeal the denial of his § 440.10 motion. 2. Within 30 days following either (a) the denial of Priester's application for leave to appeal or (b) if leave to appeal is granted. an adverse decision on the merits of that appeal. if any. from the highest court for which review is available, Priester must file an affidavit or declaration in this habeas case stating that his § 440.10 motion has been disposed of and that he wishes to terminate the stay of this case.
Failure to comply with either deadline will result in the entire petition being dismissed. See Zarvela, 254 F.3d at 381.